In his great work, The American Republic, written in 1866, the American Catholic political writer Orestes Brownson – who ranks with Calhoun and John Adams as among the finest political minds America has produced, and who still remains somewhat neglected – wrote this about the nation’s political order.
The constitution of the United States is twofold, written and unwritten, the constitution of the people and the constitution of the government.
The written constitution is simply a law ordained by the nation or people instituting and organizing the government; the unwritten constitution is the real or actual constitution of the people as a…

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In Gerald Russello’s account of Russell Kirk’s Constitutional theory, he conscisely outlines Kirk’s thought on that central concern for conservatives and indeed for all Americans. As Kirk understood, the Constitution is a great Fact of American experience, whose importance cannot be overlooked; and yet, as any historian could tell us, the trouble with facts is…

It is a great honor to be asked to comment on Gerald Russello’s excellent piece. A man whose scholarship and wisdom is as high as his integrity is deep, Russello has pioneered much in his own writing and editing and in his profound grasp of the law. Almost every topic I’ve explored academically has proudly…

2013 is the 60th year since Regnery Publishing brought Russell Kirk's The Conservative Mind to the reading public. The book helped transform modern American politics and inform many emerging conservative minds. When I was interning in Washington, DC more than twenty years ago, I remember answering a question by saying that I had a skeletal…

With a title like The Partisan, we should know what to expect. John Jenkins’s biography on the late Chief Justice loses no chance to paint him in the worst possible light. Rehnquist is a nihilist, dogmatic, cold, distant, a racist, not a hard worker, and dangerously bound to a desiccated judicial philosophy, unless its results would contradict his desired policy objectives, in which case any legal theory will do.
This gives the flavor, taken almost at random: “Rehnquist’s judicial philosophy was nihilistic to its core, disrespectful of precedent and dismissive of social, economic, and political institutions that did not comport with…

Judicial Monarchs: Court Power and the Case for Restoring Popular Sovereignty in the United States might be placed alongside the recent tome by Justice Stephen Breyer, Making Our Democracy Work, each representing a strand of the two major ways of thinking abut the power of judicial review. Breyer represents what may be called the judicial supremacist view, the view that is most deeply entrenched among the judicial and legal elites. William Watkins represents what may be called the coordinated powers approach, an older but, since the early twentieth century, less influential approach.
On the Breyer view, the courts, especially the Supreme Court,…

The problem with Justice Breyer’s recent book begins at the second sentence: “The Constitution’s framers and history itself have made the Court the ultimate arbiter of the Constitution’s meaning as well as the source of answers to as multitude of questions about how this vast, complex country will be governed.”

Recent Posts

The judiciary should strike down only laws that clearly violate the meaning of Constitution. For this reason, Jack Balkin’s project of Living Originalism is fundamentally flawed at least as to the judiciary, because he believes that judges have substantial discretion …by John O. McGinnis

FDR observed that “The process of collective bargaining . . . cannot be transplanted into the public service.” What does it mean for taxpayers if government workers organize into unions and engage in collective bargaining arrangements? What actually checks and …by Daniel DiSalvo

In my last several posts (see here for links), I have written about the possibility of constraining the executive branch and regulation through statutory reforms. I have focused on reforms that might be desirable and that might actually be passed …by Mike Rappaport

Over the past few years, state attorneys general have brought dozens of lawsuits challenging the Obama Administration’s regulatory initiatives. In addition to leading constitutional challenges to the Affordable Care Act, AGs have sued to block new environmental regulations, implementation of …by Paul Nolette

Yale law professor Heather K. Gerken is among the country’s most prolific and creative federalism scholars. In cooperation with two co-authors (Ari Holtzblatt and James T. Dawson—hereinafter, “Gerken & Co”) she has embarked on a project to develop a theory …by Michael S. Greve

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